Posted by Citizen Bob on 11/06/06 18:44

http://www.lawandliberty.org/jurynul1.htm

Jury Nullification: The Top Secret Constitutional Right
by James Joseph Duane

Note: James Duane is a law professor at Regent University in Virginia
Beach, VA, and is a nationally recognized expert in Rules of Evidence.


A bill now pending in the Missouri state legislature has whipped up a
firestorm of controversy. Judges and prosecu-tors there call it "a
gut-punch to democracy," "an invitation to anarchy," and a bill that
"flies in the face of everything this country stands for." One county
prosecutor has even called for the resignation of the 20 state
representatives who intro-duced the bill.

What could have caused such calamity? This supposedly radical
legislation would merely require judges to tell crimi-nal juries the
undisputed fact that they have "the power to judge the law as well as
the evidence, and to vote on the ver-dict according to conscience." It
is hard to remember the last time there was so much turmoil over a
proposal to declassify a government secret during peacetime.

Meanwhile, out in Nevada, a 50-year-old florist and grandmother almost
landed in prison for her efforts to help spread the word to jurors.
When her son went on trial for drug charges in federal court. Yvonne
Regas and a friend papered the windshields of nearby parked cars,
hoping to let the jurors learn the completely unexpected fact that her
son faced 450 years in prison for a single drug transaction nine years
earlier. Federal authorities charged her with jury tam-pering and
obstruction of justice, but eventually dropped the charges.
Presumably, they gave up hope of figuring out how they could get
jurors to convict her without showing them the contents of the
pamphlets she had been distributing-and then her jury would know the
truth about nullification.

Despite all the modern government resentment toward 'jury
nullification," its roots run deep in both our history and law. At
least two provisions of the Constitution. and arguably three, protect
the jury's power to nullify. They also explain why that power is
limited to criminal cases, and has no analogy in the civil context.

First, it is reflected in the Sixth Amendment. which grants the
accused an inviolable right to a jury determination of his guilt or
innocence in all criminal prosecutions for serious offenses. Because
of this right, a trial judge absolutely cannot direct a verdict in
favor of the State or set aside a jury's verdict of not guilty, "no
matter how overwhelming the evidence." Sullivan V. Louisiana, 508 U.S.
275, 277 (1993). Any violation of this rule is automatically
reversible error without regard to the evidence of guilt. Id. Indeed,
the point is so well settled that it was announced without dissent in
Sullivan by a Court that has been unanimous on only a few
constitutional questions in the past ten years.

This rule is applied with a rigor that is without parallel in any area
of civil practice. For example, it is reversible error to direct a
verdict of guilty over the defendant's objection. even if he takes the
witness stand and admits under oath that he committed every element of
the charged offense Br~~an' V. Georgia, 163 Ga. App. 872, 296 S.E.2d
168 (Ga. Ct. App. 1982). (Although one might fairly describe that
particular defense strategy as a questionable use of direct
examination.)

Judicial Deference

Likewise, when a judge takes judicial notice of a fact in a criminal
case-for example, that the defendant could not have boarded a train in
New York and exited in Texas with-out somehow crossing state lines-he
will tell the jury they "may" accept that fact as proven without
further evidence. But he may not tell them that they are required to
do so, or take the factual question away from them. no matter how
obvious the fact might seem. See Advisory Committee Notes to Fed. R.
Evid. 201(g). Even where the defendant and his attorney enter into a
formal stipulation admitting an element of the offense, the jury
should be told merely that they may regard the matter to be "proved."
if they wish. but the judge still cannot direct a verdict on that
factual issue or take it away from the jury over the defendant's
objection. United States v Muse, 83 F.3d 672.679-80 (4th Cir. 1996).
All of these rules are designed. in part. to protect the jury's
invio-lable power to nullify and to avoid the reversible error always
committed when "the wrong entity judge[s] the defendant guilty." Rose
v. Clark. 478 U.S. 570.578 (1986). Second. the roots of nullification
also run deep into the Double Jeopardy Clause. Even where the jury's
verdict of not guilty seems indefensible, that clause prevents the
State from pursuing even the limited remedy of a new trial. This rule,
by design, gives juries the power to "err upon the side of mercy" by
entering "an unassailable but unreasonable ver-dict of not guilty."'
Jackson V. Virginia, 443 U.S. 307, 317 n.l0 (1979).

Finally, the jury's power to nullify is protected by our abiding
'judicial distaste" for special verdicts or interrogato-ries to the
jury in criminal cases. United States v. Oliver North, 910 F.2d
843,910-11 (D2C. Cir. 1990). Unlike in civil cases, where such devices
are routinely employed, in crimi-nal cases it has frequently been held
to be error to ask a jury to return anything but a general verdict of
guilty or not guilty. United States v. McCracken, 488 F.2d406,
418-419(5th Cir. 1974) (collecting cases). This rule is designed to
safeguard the jury's power "to arrive at a general verdict without
hav-ing to support it by reasons or by a report of its
delibera-tions," and to protect its historic power to nullify or
temper rules of law based on the jurors' sense of justice as
con-science of the community. Id.; United States v. Spock, 416 F.2d
165, 181-82(1st Cir. 1969). The jury is given "a general veto power,
and this power should not be attenuated by requiring the jury to
answer in writing a detailed list of ques-tions or explain its
reasons." United States v Wilson. 629 F.2d 439,443 (6th Cir. 1980).
Although the issue is far from settled, a powerful argument can be
made that this rule "is of constitutional dimensions," and a direct
corollary of the Sixth Amendment's protection of the jury's power to
nullify. Wayne LaFave & Jerold Israel, Criminal Procedure �24.7(a) (2d
ed. 1992).

These constitutional rules, in combination ,give a criminal jury the
inherent discretionary power to "decline to convict." and insure that
such "discretionary exercises of leniency are final and unreviewable."
McCleskey v. Kemp, 481 U.S. 279, 311(1987). This state of affairs does
not even have a rough parallel in civil cases, where the Seventh
Amendment right to a 'trial by jury" does not preclude judges from
granting summary judgment, directed verdicts, and new trials. (In
effect, although both amendments are written quite similarly, the
Supreme Court has interpreted the Sixth Amendment to give criminal
defendants a right to a jury and a trial; the Sev-enth Amendment,
where it applies. only gives civil litigants the right to a jury if
there is a trial.)

The existence of a criminal jury's power to nullify is currently as
well settled as any other rule of constitutional law. It is a
cornerstone of American criminal procedure. The far more controversial
issue-and much more frequently liti-gated-is that perennial dilemma:
What should we tell the kids? Should (or must) the judge tell the
jurors anything about their power (or right) to nullify? Should the
judge at least allow the defense to tell them? If so, how much should
we tell them, and how should we do it? These issues lie at the very
core of our criminal justice system, and have been debated by lawyers,
journalists, philosophers, and patriots for two centuries. It is
therefore ironic that these questions have, at least in recent
decades, generated one of the most remarkable displays of unanimity
ever orchestrated by state and federal courts on any issue of law in
American history.

It would take at most four words to fairly summarize the unanimous
consensus of state and federal judges on the idea of telling jurors
about their power to nullify: "Forget it. No way." Even while
extolling the beauty and majesty of our commitment to the jury's
constitutional role as a guardian against tyranny, no state or federal
appellate court in decades has held that a trial judge is even
permitted-much less required-to explicitly instruct the jurors on
their undisputed power to return a verdict of not guilty in the
interests of jus-tice. The federal courts are unanimous and have been
for years, e.g.. United States V. Manning. 79 F.3d 212, 219 (1st Cir.
1996) ('a district judge may not instruct the jury as to its power to
nullify"). So are the state appellate courts, e.g., Mouton v. Texas,
923 S.W.2d 219 (Tex. Ct. App. 1996): Michigan V. Demers, 195 Mich.
App. 205,489 N.W.2d 173 (Mich. Ct. App. 1992).

State Law

There is a pervasive myth that three states supposedly allow jury
nullification instructions: Georgia, Maryland, and Indiana. See State
V. Morgan Stanley & Co., 194 W.V. 163. 175,459 S.E.2d 906,918 n.27
(W.V. 1995); Paul Butler, Racially Based Jury Nullification: Black
Power in the Crim-inal Justice System, 105 Yale L. J. 677, 704 n,147
(1995). Some lists also include Oregon. This is presumably because
those states have laws or constitutional provisions suggesting that
criminal jurors are judges of the law and the facts. But the myth is
false. Despite their differing constitutions, all four states have
held that a jury has, at most. the power to acquit a guilty man, not
the right, and should not be told that it may ignore or nullify the
law. See, e.g.. Miller v. Georgia, 260 Ga. 191, 196, 391 S.E.2d
642.647 (Ga. 1990). Resourceful defendants and their attorneys have
tried every conceivable route around this immovable roadblock. All
have been thwarted. Without exception. the appellate courts will not
allow a defense attorney to use her closing argument to tell the
jurors about their power to nullify, or to urge them to use it. See,
e.g., United States V. Muse, 83 F.3d 672.677 (4th Cir. 1996).

Nor can the defense offer evidence that is relevant to noth-ing but
the justness of a conviction or acquittal, or is other-wise designed
to induce the jury to nullify. United States V. Griggs, 50 F.3d 17,
1995 WL 7669 (9th Cir. 1994). This includes, most notably, any
information about the sentence faced by the defendant, even if it is a
minimum mandated by law. United States V. Johnson, 62 F.3d 849,
850-51(6th Cir. 1995).

Judicial disapproval also extends to any evidence or argument designed
solely to persuade the jury that the government was guilty of
misconduct in its investigation or prosecution. United States V.
Rosado, 728 F.2d 89,93-95 (2d Cir. 1984).

Predictably, the battle is moving to the earliest stages of the trial,
but the results are the same. Requests to ask jurors about
nullification on voir dire have been denied. United States V. Datcher,
830 F Supp. 411,418 (M.D. Tenn. 1993).

Defendants will go to any lengths to get this forbidden topic before
the jury.

One pro se defendant tried to persuade the Supreme Court that her
trial judge improperly refused to let her challenge for cause those
prospective jurors who did know or understand the term "jury
nullification." Mendonca V Oregon, 55 U.S.L.W. 3362 (1986) (petition
for certiorari). The Court decided it might tackle that one later, and
denied review. 479 U.S. 979 (1986).

Defendants will go to any lengths to get this forbidden topic of
discussion before the jury. In one recent case involv-ing minor
charges in traffic court, a pro se defendant offered the State of
Pennsylvania a bargain of almost Faustian proportions. He asserted a
right to execute a release of his prop-erty rights under state law and
all of his privileges and immunities secured by the Fourteenth
Amendment, subject to the condition that he would revert to the status
of an "American Freeman" with all of the "common law rights thereof,
including the right to a jury possessing the power of jury
nullification." Phelps V. Pennsylvania, 59 U.S.L.W. 3522 (1991)
(petition for certiorari). The Supreme Court passed up this chance to
decide the issue. perhaps preferring to wait until it percolates a bit
more in the lower courts. 498 U.S. 1088 (1991). Judicial hostility to
jury nullification goes well beyond the stone wall of silence erected
around the jury box. Case after case has approved jury instructions
actually designed to imply that jurors do not have such power at all.
or to "instruct the jury on the dimensions of their dutv to the
exclusion of jury nullification." United States". Sepulveda. 15 F.3d
1161. 1190 (1st Cir. 1993). For example, criminal jurors are routinely
ordered: "You must follow my instructions on the law. even if you
thought the law was different or should be different," Eighth Circuit
Pattern Criminal Jury Instruction 3.02 (1991), and "even if you
disagree or don't understand the reasons for some of the rules."
Federal Judicial Center, Pat-tern Criminal Jury Instruction 9(1987).

In extreme cases, this judicial hostility even extends to dishonesty.
As Chief Judge Bazelon correctly observed, current law on this topic
is tantamount to a "deliberate lack of candor." United States V.
Dougherty, 473 F.2d 1113, 1139 (D.C. Cir. 1972) (dissenting opinion).
In one especially outrageous case, the jury deliberated for hours in a
criminal tax case before sending the judge a note asking: "What is
jury nullification?" The defendant was convicted shortly after the
judge falsely told the jury that "there is no such thing as valid jury
nullification," and that they would violate their oath and the law if
they did such a thing. United States V. Krzyske, 836 F.2d 1013,
1021(6th Cir. 1988). Over a vigorous dissent, the Court of Appeals
deemed the instruction proper and affirmed the conviction, id., even
after the defendant furnished the court with an affidavit from a juror
who swore he would have acquitted if "we were told the truth about
jury nullification." United States V. Krzyske, 857 F.2d 1089, 1095
(6th Cir. 1988).

This widespread judicial pattern is highly ironic. The courts have
unanimously (and erroneously) refused to let defense attorneys argue
for nullification, typically by insist-ing that the jury has no power
to consider what the law should be, and that juries have no lawful
task but to decide whether the defendant broke the law. Yet, in a fit
of sheer inconsistency, the same federal courts of appeals are also
unanimous that it is permissible for prosecutors to urge juries to act
as the "conscience of the community" and use their verdict to "send a
message" about whether society should be willing to tolerate the
defendant's alleged conduct. James J. Duane, "What Message Are We
Sending to Criminal Jurors When We Ask Them to 'Send a Message' With
Their Ver-dict?," 22 Am. J. Crim. Law 565, 57~79 (1995).

The Sixth Amendment creates a right for the defendant to insist on a
jury to act as a community conscience and protect him from government
oppression, and yet only the State is allowed, when it chooses, to ask
the jury to consider matters of morality and conscience. Id. at
590-602. Thus have we witnessed a complete perversion of the
constitutional priori-ties and structure.

One might fairly summarize the case law this way: "You may hope that
the jury will refuse to apply a harsh, unfair or inequitable law, but
you may not urge them to do so." Steven Lubet. Modern Trial Advocacy
436 (1993) (emphasis added). But why not? Why can't we tell the jury a
little bit more than we do about the truth? Not since the storming of
the Bastille have the forces of government been so tightly united in
their opposition to a popular uprising. Numerous arguments have been
advanced by judges around the country for this refusal, but not one
stands up to serious analysis.

1. "Jury nullification is an embarrassing glitch in our law."
What should we tell jurors about their power to nullify? The answer
depends largely on one's attitude toward a closely related issue: Just
what is nullification anyway, and why is it protected by the
Constitution? One of the most fre-quent justifications for refusing to
tell juries about their power to nullify is the pernicious suggestion
that this power is the product of some accidental or regrettable flaw
in our system of justice.

Jury nullification has been described in many ways. some of which
cannot be repeated in respectable society. At one extreme, a federal
judge recently hailed it as "one of the peaceful barricades of
freedom." Jack B. Weinstein, "Considering Jury 'Nullification': When
May and Should a Jury Reject the Law to Do Justice," 30 Am. Crim. L.
Rev. 239, 254(1993). Even courts declining to instruct juries about
the doctrine have conceded that "the pages of history shine on
instances of the jury's exercise of its prerogative to disregard
uncontradicted evidence and instructions of the judge." United States
v. Dougherty, 473 F2d 1113, 1130 (D.C. Cir. 1972). Notable examples
include the courageous refusal of northern jurors to convict "guilty"
men who violated the fugitive slave laws. Id.

On the other hand, some courts have suggested that the power to
nullify is merely "a tolerated anomaly in the rule of law."' Mayfield
v. United States, 659 A.2d 1249, 1254 (D.C. 1995). They call it a void
in the law, giving jurors "the power to do what they want in a given
case because neither the prosecution nor the court has the authority
to compel them to do what they should." State V. Bjerkaas, 472 N.W.2d
615, 619 (Wis. App. 1991). (emphasis added). Others assert that the
power exists only because "there is nothing to prevent" it, but that
it "is not a legally sanctioned function of the jury and should not be
encouraged by the court." State V. Weinberg, 631 N.E.2d 97, 100 (N.Y.
1994). The sensational-sounding charges have been made that a
nullification instruc-tion would "encourage the jury to abdicate its
primary function," id., or that it would "in essence direct juries
that they could run amuck." Davis V. State, 520 So. 2d 493, 494-95
(Miss. 1988). Scores of other cases have tried to capture this same
point by insisting that juries always have the power to nullify, but
never the right to do so.

So who is correct? Is the institution of nullification delib-erately
enshrined and protected in the Constitution as a valu-able political
end in itself, as some have suggested? Or is it merely a regrettable
byproduct of careless drafting, or an anomalous but necessary evil we
"tolerate" because of our commitment to some greater good? And how
could the courts be so very far apart in their responses? The answer
to this confusion depends on how one defines 'jury nullifica-tion," a
term with various shades of meaning.

In its broadest form, "nullification" has often been used to describe
the jury's "raw power to set an accused free for any reason or for no
reason," Sepulveda, 15 F.3d at 1190, even for reasons having n6thing
to do with justice or guilt.

The Jury's Rights

An acquittal may come because the jurors found the defendant
attractive, or were members of the same race, or harbored hatred
toward the victim's race, or merely because they were tired of being
sequestered for months. This possibility, which might fairly be called
"lawless nullification," is protected by our Constitution not for its
own sake, but because of our commitment to the secrecy of jury
deliberations and the finality and unreviewability of their verdicts.
(This is true in much the same way that the First Amendment protects
the right to say many things that nobody would pub-licly hold up as a
model of good civic behavior.)

There is no compelling reason why a jury should learn every dirty
little secret of our system of justice, especially if that knowledge
would undermine the purpose of the proceeding or the jurors'
perception of the seriousness of their role. See Caldwell V.
Mississippi, 472 U.S. 320, 323 (1985) (error to give jury misleading
view of the extent of appellate review of their sentencing
recommendation). Thus, the courts are correct to hold that the law
should not require or encourage a judge to remind jurors of the
regrettable fact that they have the raw power to acquit for any
arbitrary or spiteful reason, or indeed for no reason at all. But in
no reported case, to my knowledge, has any defendant or his attorney
requested an instruction that would go even half that far.

In the real world, outside the pages of appellate judicial opinions,
defendants almost invariably make the far more modest request that the
jury be told merely of its authority to acquit an accused if a
conviction would conflict with their deeply seated sense of morality
and justice. In this, its purest form. the possibility of
"nullification" is not some accidental byproduct of careless drafting
in the Constitution, nor of our commitment to some greater good. It is
one of the very rea-sons for the existence of the Sixth Amendment's
inflexible insistence that the accused has the right to a jury of his
peers.

The jury is there, by design, "to prevent oppression by the
Government" and to "protect against unfounded criminal charges brought
to eliminate enemies and against judges too responsive to the voice of
higher authority." Duncan V. Louisiana, 391 U.S. 145, 155-56(1968).
The jury's role "as a check on official power" is in fact "its
intended function." Batson v. Kentucky, 476 U.S. 79, 8~87 n.8 (1986).
The jury injects "a slack into the enforcement of law, tempering its
rigor by the mollifying influence of current ethical conven-tions."
United States ex re L McCann v. Adams, 126F.2d774. 775-76 (2d Cir.
1942) (Learned Hand, J.). That is why a directed verdict for the state
would be not merely unconstitutional-it "would be totally alien to our
notions of crimi-nal justice," since "the discretionary act of jury
nullification would not be permitted." Gregg v. Georgia, 428 U.S. 153,
199 n.50 (1976) (plurality opinion).

This is also the defect in the long line of cases that age
nullification by claiming that the jury has only the power,' but not
the "right," to do it. That may be a fair description of the jury's
latitude to acquit for any lawless rea-son that pleases them-its
"power to bring in a verdict in the teeth of both law and facts."
Horning v.. District of Columbia, 254 U.S. 135,138 (1920). But the
jury's power to acquit out of justice or mercy is a constitutionally
protected right. If not their right, it is at least the defendant's
firmly settled right that he insist on a jury with such power,
regardless of whether the proof of his technical legal guilt is
literally overwhelming and uncontradicted. Sullivan V. Louisiana, 508
U.S. 275, 277-82 (1993). Any judicial instructions that would prevent
the exercise of this right are unconstitutional.

These considerations about the historical roots of the right to a jury
trial, by themselves, do not dispose of the question whether the jury
should be instructed about nullification. But they easily suffice to
dispatch the absurd suggestion that the latitude allowed for an
acquittal based on the jury's sense of justice should be kept from the
jury because it is only a flaw in the system's design, or that it is
not a legally sanctioned function of the jury.

2. "Nullification instructions encourage the jury to violate the law."
Some courts have reasoned that a nullification instruction would
permit, if not encourage, the jurors to dis-regard or break the law.
One court even held that it is proper to affirmatively instruct the
jurors that they would "violate the law" if they engaged in
nullification or if they violated any of the judge's instructions on
the law. United States V. Krzyske, 836 F.2d 1013, 1021(6th Cir. 1988).
Another has reasoned that "anarchy would result from instructing the
jury that it may ignore the requirements of the law." Powell, 955 F.2d
at 1213. Such assertions are baseless. Contrary to the widespread myth
popular among judges, there is no "law" that requires juries to
convict every man shown to be technically guilty beyond a reasonable
doubt. "The power of the courts to punish jurors for corrupt and
incorrect verdicts," Dougherty, 473 F.2d at 1130, that darling of the
Star Chamber's nursery, was banished from the pages of Anglo-American
law centuries ago. Today, at its very core, our system of justice is
unflinchingly committed to the liberty of criminal juries to "err upon
the side of mercy," Jackson, 443 U.S. at 317, or to "refuse to convict
even though the evidence supported the charge." Gregg, 428 U.S. at 199
n.50. Any system that restricted such liberty "would be totally alien
to our notions of criminal justice." Id. In this respect,
nullification is every bit as lawful as leniency extended by the
prosecutor, or the judge, or the governor. Id.

Nor does any "law" forbid a jury from pardoning a man who violated an
unjust statute, even if an acquittal requires them to ignore the
court's instructions on the law. The Con-stitution does no such thing:
it actually protects the jury's right to acquit based on their sense
of justice. The penal code does not criminalize such conduct, and
would be clearly unconstitutional if it did. Not even the Bible
imposes any such rule. See Deuteronomy 16:20 ("Follow justice and
jus-tice alone"). If there is any such "law," it is true only in the
narrow sense of illegitimate case law made up by judges act-ing well
beyond the scope of their lawful authority. Judges who tell each other
that "nullification is illegal" are more than vaguely reminiscent of
the judge who once told a criminal defendant: "Rule Forty-Two. All
persons more than a mile high to leave the court! It's the oldest rule
in the book." Lewis Carroll, Alice 's Adventures in Wonderland 256
(Bramhall House 1960). As the defendant adroitly responded: "Then it
ought to be Number One" or it ought to be, at the very least, written
down in the Constitution, or the penal code, or somewhere besides
judicial opinions.

3. "The Supreme Court said not to tell the jury about it,"
A surprising number of courts have tried to blame the Supreme Court
for their refusal to tell juries about the power to acquit on moral
grounds. That myth is also false. The Supreme Court has never said
such a thing.

In the two cases widely cited for this proposition, the Court merely
declared that a jury is not entitled to decide what the law is or
should be, and that "a judge always has the right and duty to tell
them what the law is upon this or that state of facts that may be
found." Horning V. District of Columbia, 254 U.S. 135, 138 (1920)
(Holmes, J.); accord Sparf and Hansen V. United States, 156 U.S.
51(1895). This language has been widely cited by lower courts as
authority for their refusal to permit any argument or instructions on
nullification. E.g., Krzyske, 836 F.2d at 1021.

In fact, however, Horning and Sparf have nothing to do with this
matter. It would indeed be improper to tell a jury that "they are to
determine the rules of law." Dougherty, 473 E2d at 1136. In Sparf for
example, the Supreme Court properly refused a murder defendant's
request that his jury be told they could convict him of manslaughter
out of leniency, even though he conceded that there was no evidence to
support a finding of guilt on such a lesser charge! 156 U.S. at 99. If
that were the law, of course, we ought to read the jury the entire
penal code, just in case manslaughter seems too harsh, so they could
perhaps convict him of driving with a bad muffler instead, or maybe
acquit him on the grounds of intoxication.

Our entire system of justice would be undermined if jurors had the
liberty to return a false verdict-even for benign motives of
mercy-convicting a defendant of a lesser offense she simply could not
have committed, or acquitting her because of some legal defense with
absolutely no basis in the evidence.

But that straw man has nothing to do with the typical case of a
defendant seeking an instruction on nullification. Such instructions
need not suggest that jurors be told they can decide for themselves
what the law is or should be, or that they can convict the defendant
of some lesser offense (or acquit on the basis of some affirmative
defense) with no basis in the facts. Our law does not countenance such
contrivances and should not encourage them. But a proper nullification
instruction or argument would merely tell the jury the fact-or at
least confirm their intuitive suspicion-that our law intentionally
allows them the latitude to "refuse to enforce the law's harshness
when justice so requires." LaFave and Israel, Criminal Procedure �
22.1 , at 960. Whether that information should be given to the jury
has never been considered or decided by the Supreme Court. Id. But it
is the height of hypocrisy to refuse to report that truthful
information about our constitutional law to the jury on the pretense
that the judge "has the right and duty to tell them what the law is."
Horning, 254 U.S. at 138 (emphasis added). That language, taken
literally, would require the judge to tell the jury much more than we
do about nullification.

There is one variant of nullification, however, that appears to have
been recently foreclosed by the Supreme Court. Without specifically
addressing the topic of nullification. the Court recently held that
jurors should not be given distracting infor-mation about the
sentencing consequences of their verdict, even when that evidence
might serve to correct inconsistent and erroneous beliefs the jury is
likely to harbor about the effect of their verdict. Shannon V. United
States. 114 5. Ct. 2419,2427 (1994). That reasoning would also appear
to apply where the defendant seeks to tell the jury about sen-tencing
information solely to persuade them to acquit out of compassion and
mercy, as the lower courts have already acknowledged. See United
States V. Johnson, 62 F.3d at 850.

Limiting the Jury's Discretion

The reasoning of Shannon, consistently applied. would take a big bite
out of the jury's power to nullify. An oppressive political regime
could achieve some surprising results by persuading a jury to convict
an accused of some seem-ingly minor offense that carries a
surprisingly draconian penalty. Without accurate sentencing
information. jurors would be unable to nullify such a monstrous law-
or worse yet, might even end up playing right into the government's
hands by guessing incorrectly.

Heidi Fleiss, for example, was convicted of consensual sex offenses by
jurors who were "outraged" to later learn she faced a minimum
three-year prison sentence. Despite several jurors' belief that she
was innocent, the jurors had struck a deal after four days of
deliberating and acquitted her of drug charges-where the evidence was
stronger-because they were "under the mistaken impression that the
narcotics charge carried a stiffer penalty." Shawn Hubler, "Court
Overturns Fleiss' Conviction. Orders New Trial," L.A. Times, at Al
(May 30, 1996). (Of course, trials like this one-and many
others-undermine the Supreme Court's crucial assumption that jurors
can be trusted to heed our standard instruction to disregard possible
punishment when reaching their verdict.)

Shannon did not close the door to most forms of nullification,
however. As the Court properly reasoned, it would be difficult to
decide where to draw the line once we open the jury room door to even
truthful information about the long-run sentencing consequences of
their verdicts. Shannon, 114 S.Ct. at 2427-28 & n. 11. But that logic
does not apply to the normal case of nullification, where the accused
desires an acquittal based only on the moral implications of the
evidence already properly before the jury concerning the details of
his conduct, and does not seek to smuggle into the record any facts
they did not already learn from the prosecutor.

4. "We can't encourage the jurors to violate their oath."
Perhaps the most threadbare judicial objection to nullification
arguments is that "neither the court nor counsel should encourage
jurors to violate their oath." United States V Trujillo, 714 F.2d 102,
106 (11th Cir. 1983). These cases rou-tinely assume that a jury's oath
forbids them from nullifying for any reason, even if based on their
firm belief that a conviction would be a terrible miscarriage of
justice. One prose-cutor recently reiterated the age-old complaint
that 'jury nul-lification gives status and dignity to what is
basically violating your oath as a juror to follow the law." Tony
Perry, "The Simpson Verdicts," L.A. Times, at 5 (Oct. 5, 1995).
Moreover, it has been recommended that federal judges go one step
further and routinely tell jurors, "You are bound by the oath that you
took at the beginning of the trial to follow the instructions that I
give you, even if you personally disagree with them." Sixth Circuit
Pattern Jury Instruction 1.02. If the jurors explicitly ask about
nullification, we are told that the judge should warn them of the
supposed "fact" that acquittal of a guilty man for any reason would be
a breach of their solemn oaths as jurors. Krzyske, 836 F.2d at 1021.

This ominous-sounding charge has no logical substance. although it
naturally carries much emotional appeal. Jurors know that oaths are
serious business, see Exodus 20.7, 16. and the law never permits or
encourages anyone to do any-thing contrary to his oath. But despite
its tremendous popu-larity among judges, this argument is by far the
most mis-shapen stone in the barricade judges have been erecting
around the jury box.

To begin with, it is usually false. The typical oath taken by jurors
today does not forbid them from refusing to convict based on their
sense of justice. In fact, many oaths administered today are barely
even intelligible. At the beginning of the trial, jurors are typically
asked to swear that they "will well and truly try and a true
deliverance make between the United States and the defendant at the
bar, and a true verdict render according to the evidence, so help [me]
God." United States V. Green, 556 F.2d 71 ~.1 (D.C. Cir. 1977).

Nobody still alive today knows for sure what it means to "make a true
deliverance." But nothing in this oath would forbid jurors from
acquitting if they are convinced-based solely on "the evidence"-that
the accused's actions were morally blameless and that a conviction
would be unjust. In such rare cases, no jurors could be said to have
decided a case "well and truly" if they had to disregard their sense
of justice to convict. And an acquittal in that case would cer-tainly
sound like a "true deliverance." See Proverbs 24:11 ("Rescue those
being led away to death"); Isaiah 61:1 ("He has sent me to proclaim
freedom for the captives and release from darkness for the
prisoners").

If a jury refuses to convict a man because of overwhelm-ing feelings
of mercy or justice, they are not returning a "false" verdict. A
verdict of "not guilty" based on a jury's notions of justice is not
affirmatively declaring that he is innocent. (The same is true of an
acquittal based on their conclusion that he has only been shown to be
probably guilty, but not beyond a reasonable doubt.) The general "not
guilty" verdict is merely a shorthand way of allowing the jury to
express, for reasons they need not explain, "we do not choose to
condemn the accused by pronouncing him guilty."

The standard objection to nullification instructions might carry at
least superficial plausibility in those jurisdictions where the jury
is sworn to render "a true verdict according to the evidence and the
charge of the Court." United Stares V. Pinero, 948 F.2d 698,699 n.3
(11th Cir. 1991). If those same jurors are later instructed by the
court that they "must convict" where there is proof of legal guilt
beyond a reasonable doubt, it probably would be a violation of such an
oath to dis-regard the court's charge and acquit the man because his
conduct was morally blameless.

But this objection to nullification instructions utterly begs the
question. It is clear that defendants can make at least a plausible
claim to a moral (and perhaps constitutional) right to appeal to the
jurors to acquit out of justice or mercy. That argument must either
stand or fall on its own merit, without any regard to the present
wording of the jurors' oath.

Constitutional Protection

It is a colossal red herring to dismiss such claims with the rejoinder
that nullification acquittals would "violate the jurors' oath." No
judge can brush aside a plausible constitutional argument by saying
"You might be right, but we do not decide the question, because we
have already extracted a solemn vow from the jurors to abide by a
different procedure that arguably violates your moral and
constitutional rights." That "logic" could lead to some remarkable
results in jurisdictions deter-mined to defeat other constitutional
provisions as well.

A jury's latitude to nullify is deliberately protected by the
Constitution. Neither the tradition nor the wording of the oath
administered to the jurors, on the other hand, is so dic-tated. In
federal court it is not even prescribed by statute. It is simply an
old tradition judges have made up. If the word-ing of the oath poses
some conflict with the jury's constitu-tional prerogative to nullify,
it is clear which one must yield the right of way. Courts simply have
no business (much less lawful authority) asking jurors to swear to
anything that would violate the Constitution or the jury's deeply held
con-victions about justice.

Besides, while we are on the subject of oaths, it is well to remember
that there is always one party in the courtroom who is required to
take an oath prescribed by federal law-and it is not the jury. Before
ascending to the bench to try his first case, every federal judge is
required by law to swear or affirm to uphold the Constitution (which
includes the Sixth Amend-ment), and "that I will administer justice
without respect to persons." 28 U.S.C. � 453. That is a most
peculiar-sounding oath for anyone who intends to browbeat jurors into
putting aside any notions of 'justice" that might stand in the way of
their willingness to condemn a morally blameless man.

Beyond all this, perhaps the most blasphemous aspect of the invocation
of the oath is the simple fact that we really do not expect jurors to
refrain from nullifying in all circum-stances. That being the case, it
ill-behooves us to place jurors under an oath that they will not
nullify (much less lie to them about whether they have taken such an
oath).

At least for those jurors who take their oaths seriously, it places
them in an intolerable and totally unnecessary conflict between deeply
held moral scruples. It demeans the serious-ness of the oath, which
stands at the very bedrock of our sys-tem of justice. United States V.
Dunnigan, 507 U.S. 87, 97 (1993).

And when citizens and jurors gradually get wind of the fact that we
really don't expect them to always refrain from nullifying. despite
their alleged oaths to the contrary, who can blame any of those people
from cutting corners with their future oaths as witnesses or elected
officials?

5. "We give them enough hints already."
Perhaps the most baffling excuse for refusing to tell jurors about
nullifi-cation is the excuse that we already give them a few ambiguous
clues about their power to nullify. In the seminal Dougherty case, for
example, which remains the most influ-ential opinion ever written on
this topic, the Court of Appeals reasoned that explicit instructions
would be super-fluous, in part because juries get the message in a
variety of subtle ways. The court based this holding, in part, on its
axiomatic assumption of "the fact that the judge tells the jury it
must acquit (in case of reasonable doubt) but never tells the jury in
so many words that it must convict." 473 F.2d at 1135 (emphasis
added).

The first problem with this justification is that it proceeds on a
premise that is no longer generally true. Contrary to the Dougherty
court's assumption about what a criminal trial judge would "never" do,
the United States Judicial Confer-ence has instructed federal judges
to tell every criminal jury that "if you are firmly convinced that the
defendant is guilty of the crime charged, you must find him guilty."
Federal Judicial Center, Pattern Jury Instructions 21 (1987). Several
courts have formally approved similar instructions telling the jury
they "must" convict. See People v. Bernhard Goetz, 73 N.Y. 2d 751,
752, 532 N.E.2d 1273 (N.Y 1988). Indeed, one Circuit Court of Appeals
recently went so far as to state (in an unpublished decision) that
instructing jurors any other way-for example, that they "should"
convict-is at least "arguably" forbidden by the supposed "rule" that a
jury is not to be told that nullification is a permissible course to
take. United States v. Fuentes, 57 F.3d 1061, 1995 WL 352808 at **2
(1st Cir. 1995).

The reasoning of these cases is indefensible. Telling a jury they
"must" convict where guilt has been proven beyond a reasonable doubt
is a serious misstatement of the law and "an error of the most
egregious nature." Proceedings of the 53rd Jud. Conf of the D.C.
Circuit, 145 F.R.D. 149, 175 (1992) (Remarks of R. Kenneth Mundy,
Esq.). Under our Constitu-tion, by design, a defendant is entitled to
have his fate decided by a jury even if the evidence of his guilt is
undis-puted and decisive. Sullivan, 508 U.S. at 277. This is because
criminal jurors are entitled to "refuse to convict even though the
evidence supported the charge," and any legal system which would strip
jurors of that discretion would be "totally alien to our notions of
criminal justice." Gregg v. Georgia, 428 U.S. 153, 199 n.50 (1976).

Besides, even if we gave jurors the instruction that they "should"
convict, it would hardly suffice to convey to the jury the solemnity
of their awesome responsibility to acquit on the grounds of justice in
exceptional cases. The Dougherty court candidly conceded that the
pregnant implications of that ambiguity "would on their face seem too
weak to notice." 473 F.2d at 1135. And even if some jurors could be
fairly trusted to pick up on the subtle ambiguity left open in the
contrast between instructions as to when they "should convict" and
"must acquit," others will not. Far too much is at stake here to trust
such nuances to a haphazard system of instructing jurors with hints.
It violates both the Due Process and Equal Protec-tion Clauses to let
the outcome of criminal cases turn on "coded instructions" that we
hope and pray a few jurors will be clever enough to notice and
decipher on their own, all for the benefit of a select and arbitrarily
chosen group of lucky defendants. Such a system of "justice" is no
better than a judge who thinks too many jurors are relying on the
insanity defense, so he sticks that portion of his instructions in one
of eight empty drawers under the table in the jury room.

We see a similar fallacy in another bizarre compromise struck by
several lower courts. Caught between the conflict-ing commands of the
Sixth Amendment ("juries exist to pro-tect the accused from the
Government") and the appellate courts ("tell the jury they must ignore
the demands of jus-tice"), several trial judges have adopted the
pathetic com-promise of allowing the defense attorney to talk about
nulli-fication in closing arguments, but have refused to endorse such
arguments in their instructions, even after the jurors predictably ask
for further guidance from the judge. E.g., Kr;yske, 836 F.2d at 1021.
This, too, is no solution.

The Supreme Court has repeatedly declared that "argu-ments of counsel
cannot substitute for instructions by the court." Carter v. Kentucky,
450 U.S. 288, 304 (1981). "The former are usually billed in advance to
the jury as matters of argument, not evidence, and are likely viewed
as the state-ments of advocates; the latter, we have often recognized,
are viewed as definitive and binding statements of the law." Boyde v.
California, 494 U.S. 370, 384 (1990).

No matter how infrequently we hope to see juries exercise their
constitutionally protected power to nullify the operation of unjust
laws, there is simply far too much at stake to entrust that important
possibility to the implications of "crypto-graphic instructions," or
to closing arguments that seem to conflict with the charge of the
court. In the final analysis, the best answer to all this nonsense was
written long ago by Judge Cardozo. He observed in a related context
that he had no objection to giving a jury greater latitude with their
ver-dicts in a case that "seems to call irresistibly for the exercise
of mercy, but it should be given to them directly and not in a
mystifying cloud of words." "What Medicine Can Do for Law," in Law and
Literature 70, 100 (1931) (quoted in McGautha v. California, 402 U.S.
183, 199 (1971)).

6. "If the case is important enough, they will figure out we're not
too serious about all this anyhow."
There have been many silly excuses for refusing to tell juries the
truth about their lawful authority to nullify. But the most
frighten-ing of all teaches that jurors are most likely to nullify
only on rare and special cases-just as we secretly hope they will-if
we falsely suggest to them that they have no such power or moral
authority.

The reasoning here is that the lawful power to nullify is least likely
to be abused, and most likely to be reserved for the rare cases when
it is truly appropriate, if we structure our rules to make
nullification "an act in contravention of the established
instructions." Dougherty, 473 F.2d at 1136-37. After all, the argument
goes, jurors always draw their under-standing about the operation of
the system from a variety of sources in the popular culture, even
apart from the judge's instructions. Id. at 1135. This will, in
theory, allow nullifica-tion to rear its ugly head only when the
inequities of the case are sufficiently compelling to persuade the
jurors to cook up the idea and violate the judge's instructions on
their own ini-tiative. Id. at 1136.

This "reasoning" was never persuasive even when it was first handed
down to the lower courts more than 20 years ago, as Chief Judge
Bazelon noted in his dissenting opinion in Dougherty. But it is
indefensible today. Even if one could possibly hope that
"nullification" might be a secret to most jurors two decades ago,
those days are now gone. Everyone who followed the key events in O.J.
Simpson's criminal trial-which means everyone-understands by now at
least this much: jurors in a criminal trial can listen to ten months
of evidence that the government has publicly proclaimed to be
overwhelming and conclusive, and still acquit after three hours of
deliberating without being stopped on their way to the parking lot.
That is, in the main, a pretty fair description of the rough contours
of the jury's power to nullify.

At about the same time, a law professor has quickly risen to fame with
his remarkable plea that black political and spir-itual leaders join
his quest to inform their constituencies of their undisputed power to
acquit black defendants solely because of their race. Paul Butler,
Racially Based Jury Nul-lification: Black Power in the Criminal
Justice System, 105 Yale L.J. 677,723-25 (1995). That dirty little
secret about our criminal justice system was subsequently featured in
count-less newspapers, articles, and television shows. Professor
Butler has appeared to discuss this fact on 60 Minutes and Geraldo
Rivera. If there was anyone who hadn't heard before this summer, the
lid was blown off the story once and for all when it ran in the June
1996 issue of Reader 's Digest.

Joining in the fray with gusto, of course, is the Fully In formed Jury
Association (FIJA), a tax-exempt educational group with thousands of
members devoted to informing future jurors about their power to
nullify. They even have an impressive and thoughtful site on the
Internet with hundreds of visitors each day. (Although I am naturally
loath to admit having visited it in a journal the FBI may be reading.)
Mem-bers have passed out pamphlets about nullification by the
thousands outside of key trials. Legislation to require judges to
issue such instructions has been introduced in dozens of state
legislatures, as yet unsuccessfully, generating even more public
attention to the topic. The group complains-with some
justification-that they desire only to see to it that judges, like
everyone else in the courtroom, are required to tell the truth and the
whole truth.

With all this amateur mass legal education going on in earnest,
"barber shops and beauty parlors everywhere are all abuzz with talk of
jury nullification,' whether they call it by its proper name or not."
Clarence Page, "Jury Nullification Can Create Justice," Dayton Daily
News, A 10 (Nov.27, 1995). Our judicial system needs to take stock of
this reality, and fast. The integrity and credibility of the system
will be stretched to the breaking point as more and more jurors bring
to their secret deliberations "inside knowledge" about the way the
system really works, and about the reasons for the judge's refusal to
share or confirm those details.

To make matters worse, imagine what will happen when even a few people
bring into the jury room the secret knowl-edge that our system
conceals the facts about nullification in the explicit (but unshared)
hope that the jurors will see through our standard instructions and
ignore them when that is called for! At that point, we will have no
reliable protec-tion against the danger that some jurors will reason,
perhaps privately, that maybe some of our other bard and fast "rules
of law" are also there for public relations purposes, designed to be
ignored in special cases by jurors sophisticated enough to know how
the system really works- or can be worked. The integrity of our court
system will then be shattered beyond repair.

But for the fragile good faith of jurors, for example, we have no
logical or moral basis for our otherwise rash assumption that a juror
can be trusted to acquit, rather than convict, a defendant who has not
quite been proven guilty beyond a reasonable doubt, "even if he is
convinced the defendant is highly dangerous and should be
incarcerated." Shannon, 114 5. Ct. at 2427. When jurors get wind of
the appearance that at least some of our most fundamental rules are
really just window dressing, what protection will we have against
"nullification convictions" by jurors who refuse to release dangerous
or despicable villains entitled to acquit-tals on the basis of
seemingly unjust legal technicalities?

More and more legal essays are starting to surface with the rather
casual assertion that "nullification convictions" can never be a real
danger, in part because the judge and the Court of Appeals supposedly
have the power to overturn a guilty verdict that is not supported by
the evidence. E.g.. Gail Cox, "Feeling the Pressure: Jurors Rise Up
Over Principle and Their Perks," Nat '1 Law J., Al (May 29, 1995).
Those assurances, if repeated often enough, will make the problem even
worse.

This supposed "fact" about our system of justice is the most nefarious
of all, and will do irreparable damage if it falls into the wrong
hands in the jury room. It is hard to imag-ine a clearer illustration
of the maxim that a little knowledge can be a dangerous thing. Any
jurors will be far more inclined to convict in close cases if they
have picked up the mistaken impression that a judge is both empowered
and likely to correct any mistakes in their assessment of the
evi-dence. (That is especially true if one of the jurors advises the
others that a mistaken verdict of acquittal, on the other hand. is
final and unreviewable, which is now fairly common knowledge after the
Simpson trial.) That would only enhance the already great temptation
for them to abdicate their solemn responsibility by passing the buck
to the judge.

In fact, a judge's power to enter a judgment of acquittal despite a
contrary jury verdict is merely a token safeguard against the unjust
conviction of the innocent (and anyone else not proven guilty beyond a
reason-able doubt). It serves to overturn unjust -convictions only
after the extremely rare trial where there is no evidence that could
satisfy any rational jury beyond a reasonable doubt. In all other
cases, one seeking to overturn a guilty verdict based on the
sufficiency or quality of the evidence against him -"follows in the
footsteps of countless criminal defendants who have made similar
arguments," and 'faces a nearly insurmountable hurdle." United States
V. Hickok, 77 F.3d 992, 1002 (7th Cir. 1996). The judge cannot reweigh
the evidence, and challenges to a witness's lack of credibility are
"wasted on an appellate court." United States V. Pulido, 69 F.3d 192,
206 (7th Cir. 1995). Once the jury chooses to con-vict, regardless of
the reason, its verdict will stand as long as it is based on any
evidence in the record they might have chosen to believe, even
testimony that "is totally uncorroborated and comes from an admitted
liar, convicted felon, large-scale, drug-dealing, paid govern-ment
informant." Pulido, 69 F.3d at 206. Heaven help us all if the jurors
of the nation get word of these exagger-ated suggestions that federal
judges stand guard against "nullification con-victions"!

Inadequate Solution

Besides, even if we radically restructured federal law to give a judge
plenary authority to reverse a convic-tion she thought was not proven
beyond a reasonable doubt, it still would not solve the problem. Even
that arrangement would not be adequate to protect the constitutional
rights of the accused. "It would not satisfy the Sixth Amendment to
have a jury determine that the defendant is probably guilty, and then
leave it up to the judge to determine whether he is guilty beyond a
reasonable doubt." Sullivan, 508 U.S. at 278.

Meanwhile, as more Americans get the justifiable impression that the
courts are not being perfectly candid with jurors, they are naturally
and grad-ually losing their normal inhibitions about lying to judges.
Prior to sensa-tional trials, jurors' rights activists now give
everyone entering the courthouse pamphlets advising of them of their
power to nullify, warning them that the judge will deny it, and
pleading with them to deny any "knowledge of this material" during
jury selection. Joe Lambe, "Bill Would Let Juries Decide Law in Cases;
Legal Establishment Reacts to Measure with Shock, Dread," Kansas City
Star at Al (April 8, 1996). An outspoken law professor has pub-licly
declared his willingness to lie under oath during jury selection, if
nec-essary, to conceal his true attitudes toward nullification and get
the chance to nullify death penalty cases. Paul But1er, Racially Based
Jury Nullification: Black Power in the Criminal Justice System, 105
Yale L.J. 677, 724-25 n.236 (1995). That same law teacher has also
invited Americans by the thou-sands to decide for themselves whether
perjury during jury selection might be "morally justifiable" for some
greater good such as racial justice. Id.

If our criminal justice system is to retain some semblance of
integrity in the long run, it is vital that we treat jurors with
greater candor about the moral and legal contours of their power to
nullify. Fortunately, it wouldn't take long. A clear and adequate
instruction could be conveyed in a single sentence, explaining that
the jury should (not "must") convict anyone proven guilty beyond a
reasonable doubt, unless the jurors have a firm belief that a
convic-tion would be fundamentally unjust. Such an instruction would
give defen-dants all the protection they deserve against wrongful
prosecution. It would preserve the jury's constitutionally pro-tected
veto power over unjust prosecu-tions. It would minimize the terrible
danger of jurors persuading each other that the judge is withholding
(or con-cealing) crucial facts about the way the system is designed to
work. And it would, at long last, permit us in good conscience and
good faith to ask jurors to take a solemn oath to abide by the court's
charge.

Proper instructions on nullification are now quite like sex education
to youth in many different ways. There may well have been a time,
several decades ago, when it was feasible to avoid both subjects
altogether, hoping that our young wards would never even hear much
about them until a truly pressing need might arise for them to divine
a few things on their own initiative. But now there are pre-cious few
secrets about either subject that cannot be found on the Internet and
in every major magazine-along with many dangerous falsehoods and
half-truths. if we persist in our refusal to confront these delicate
topics head-on, jurors and children will continue making terrible
choices as they learn for themselves what a dangerous thing a little
knowledge can be. And in the process, judges and parents alike will
continue to lose much of their credibil-ity in the eyes of those who
correctly perceive their right to honest guidance from us.




--

"First and last, it's a question of money. Those men who own the earth
make the laws to protect what they have. They fix up a sort of fence or
pen around what they have, and they fix the law so the fellow on the
outside cannot get in. The laws are really organized for the protection of
the men who rule the world. They were never organized or enforced to do
justice. We have no system for doing justice, not the slightest in the world."
--Clarence Darrow

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